By Leith Harrell
Over the past few years, most public employees have become aware of the First Amendment audit phenomenon. Some have experienced audits firsthand, while others have seen the often sensational videos circulating on YouTube and other social media platforms. These encounters typically take place outside police stations, government buildings, post offices and other public spaces where officials are performing their duties.
Whether you’ve studied the case law surrounding filming in public or find yourself frustrated by the confrontations captured on video, one thing is clear: police and government personnel are increasingly being recorded and featured online.
While First Amendment auditors may feel like a recent development, citizens recording police is nothing new in the American landscape.
Like it or not, First Amendment auditing has evolved into a growing social media industry. Established auditors are generating significant income, newcomers are entering the space with volume and persistence, and the lawsuits continue. The upside for law enforcement is that the growing library of audit videos now reveals clear patterns in tactics and outcomes. Those patterns offer valuable lessons — and a starting point for surviving an audit. Here are a few do’s and don’ts that can help you navigate these encounters professionally and lawfully.
Accept the legal reality and avoid dismissive language
DO accept the fact that First Amendment auditors are journalists. The large majority of U.S. federal courts recognize First Amendment auditors as journalists. You don’t have to agree or like it, but it is the law of the land at this particular period in history. As such, First Amendment auditors do have the right to film whatever they can see from anywhere in public they have a right to be. This includes, particularly, government employees carrying out their duties in public places.
DON’T refer to auditing or filming as a “game.” First Amendment auditors are part civil rights activist and part entrepreneur. Though most of them began auditing out of the desire to “right” some perceived “wrong,” they are eligible to earn income as content creators once they reach a certain level of success. Whether you consider them activists, influencers or something less flattering, understand that they take auditing very seriously. To suggest that they are playing a “game” is to denigrate the constitutionally protected activity they are performing. This will offer the auditor the chance to expose you as the “tyrant” and “oath breaker” they already knew you to be. Don’t give them any ammunition.
Apply the law correctly and maintain professionalism
DO remember Terry v. Ohio. Love them or hate them, First Amendment auditors do their homework. They know that a peace officer needs to establish a reasonable articulable suspicion that a person is, was or is about to commit a crime in order to detain that person. Auditors also generally know whether their home state is or is not a “stop and ID state.” A concerned citizen’s 911 call describing a “suspicious person” does not automatically establish sufficient reasonable articulable suspicion to detain the person described.
DON’T call them names like “frauditor” or “police agitator.” The majority of federal courts have agreed that auditors are in fact journalists. They may not have formal degrees and they probably don’t work for mainstream media companies, but they are journalists just the same. If you know there will be a video record of the encounter, why in the world would you want to resort to name-calling or insults? This is pretty much the exact opposite of a de-escalation or conflict management technique. If you treat people that way, you have to ask yourself, “Who’s the real agitator?”
Control your ego and communicate with purpose
DO get your ego under control. After watching hundreds upon hundreds of hours of First Amendment audit videos, I have seen a clear trend — cops get into trouble for two reasons: ignorance and ego. A good training class, or an article like this, can cure ignorance. But controlling our ego is up to each of us individually. Everyone has an ego that is a critical part of his or her personality. This is inescapable. There have been many models and descriptions of the ego offered throughout history. The idea that helped me while working the street was this: Think of the ego as the filter that decides which part of your brain gets to do the talking — the emotional part or the reasoning part. If you accept that our job is to “be the adult in the room,” you should agree that we must let the reasoning part of the brain do the talking. Emotions are also a natural part of the human condition, but that doesn’t mean we can allow them to make our decisions for us.
DON’T say, “I don’t care.” Never. Saying “I don’t care” is the functional equivalent of saying “F#@k you” when it comes to de-escalation and conflict resolution. The perception of caring is critical to demonstrating empathy (or, if you prefer, rational compassion). If you ever hope to be able to persuade people to do what you say, you must master empathy. The last thing any peace officer wants is a permanent internet record of themselves declaring that they don’t care. It’s fine to disagree, and it’s perfectly acceptable to differ over priorities. But it’s never OK to simply not care. Saying “I don’t care” while committing a civil rights violation can increase the dollar amount of the civil liability.
Follow policy and disengage when appropriate
DO know your policy. Policy isn’t fun, it isn’t cool and it sure isn’t sexy. But it is safe, and it’s where your career will be protected. Acting outside of your agency’s policy is one of the quickest ways to wind up disciplined, fired, sued or all of the above. If a lawsuit does come your way and you acted within policy, your agency will likely have to defend you as well as itself. If you acted outside of policy, you present your department with the opportunity to defend itself at your cost. This is NOT the position you ever want to find yourself in.
DON’T absorb insults. If there is no legitimate reason to continue talking to the citizen journalist, you are always free to disengage. Yes, they are likely to taunt, “That’s the walk of shame!” Sticks and stones. No, it doesn’t feel particularly gratifying to walk away from someone while they talk smack. But that’s the difference between actually being the adult in the room and being one of the adult-sized children. The adult understands names and insults can only hurt us if we decide to allow them to hurt us. Train your ego to resist verbal attacks just as you train your body to handle physical attacks.
Use empathy tools and avoid common identification mistakes
DO consider a tactical apology when appropriate. A tactical apology can be a powerful communication tool when used to de-escalate an emotionally charged situation. Where a full apology involves acknowledging harm done, accepting responsibility for that harm and demonstrating shame or regret, a tactical apology merely acknowledges the situation and the aggrieved person’s feelings. A tactical apology might sound like, “I’m sorry you feel that way” or “I’m sorry this happened.” It doesn’t require the speaker to take full responsibility (liability) for the situation, but it does allow for a demonstration of compassion. Sincerity through tone of voice is critical to delivering an effective tactical apology — you have to sound like you mean it. If the person challenges your sincerity (“That’s not a real apology!”), you can own it in good conscience: “You’re right, I’m not speaking to the facts of what happened. I am acknowledging that you are upset.”
DON’T play the “name game.” Auditors love it when they ask for “name and badge number” and the officer points to his or her nametag. I was trained in the verbal judo school to introduce myself with name and rank at the beginning of any encounter. It’s polite, professional and it establishes your legal authority as a peace officer. Plus, most agencies’ policies require an officer to give name and employee number on demand anyway. And it ALWAYS looks shady when a uniformed officer refuses to identify on video. When you refuse to give your name, you are making the kind of video that serves the auditor’s purposes.
Handle disagreements professionally and follow media policy
DO agree to disagree. “I beg to differ” or “I don’t see it that way” sounds a lot better than “You’re wrong” or “That’s not true.” Most conflicts with auditors stem from a difference in interpretation of case law or statutes. First Amendment auditors generally do their homework, but they also tend to interpret what they read strongly in their favor. Your department’s legal advisors may not see every issue the same way. If an auditor tells you you’re wrong about some aspect of the law, it’s OK to acknowledge their claim and let them know you will be following the direction of your agency’s legal counsel. If it comes to it, the wizened soul in the black robe will decide who was right. So don’t allow your ego to be bruised by the audacity of a challenge to your professional competence. Case law involving First Amendment auditing is rapidly evolving. You might have known it chapter and verse last week, but this is a new week.
DON’T give an interview, unless your policy requires it. Most departments’ policies limit which personnel are allowed to give interviews to members of the media. Don’t forget, First Amendment auditors ARE journalists. If an auditor asks you questions pertinent to your job, you should most likely answer, just as you would for any member of the public. If the auditor starts asking questions that don’t directly relate to your assignment or current role, you might want to mention your policy and refer them to the PIO, legal advisor or a manager. Examples of questions to avoid might include those involving department policy, constitutional law (“Officer, what’s the Third Amendment to the U.S. Constitution?”) or previous incidents you didn’t witness.
Maintain professionalism and avoid unnecessary power struggles
DO be the adult in the room. Regardless of the situation or call type, it is always our job to act as the adult in the room. Our most fundamental role is to be the person who can remain calm and act ethically, within the law. This requires us to make sure we have ourselves in order before we ever try to help others keep their lives in order. While those around us may misbehave like ill-tempered children, it is our duty to maintain equanimity so we can do the right thing. This is the job, after all; it’s what we signed up for.
DON’T tell them you are in charge. A wise old mentor told me, “If you have to say ‘I’m in charge!’ you probably aren’t.” Auditors are quick to remind officers that they are taxpayers and you actually work for them. Some will even try to put you on the defensive with barbs like, “Don’t give me directives!” or “You’re dismissed, officer!” This is what fishermen call “bait.” Prepare yourself for the encounter before it ever happens. Run scenarios in your mind, or with a partner, and work out the professional language you will use when the time comes.
Project professionalism and avoid unnecessary legal missteps
DO project good faith. You don’t get to pick the time and place of a First Amendment audit, but you DO get to determine your performance. Will you make a video that serves the auditor’s purposes, or will you make a video your chief or sheriff would brag about? Get your head straight before you encounter an auditor. Practice controlling the tone of your voice, your facial expression and the professional language you will use. Everything about you should communicate the notions “I’m happy to be here,” “Of course, I love the Constitution” and “No, this isn’t my first rodeo.”
DON’T ask for “press credentials.” Auditors LOVE it when officers ask to see their press credentials. When asked, some of the saltier auditors will present handmade badges written in crayon, pocket Constitutions or the “ID” letters from a set of refrigerator magnets. First, does your jurisdiction even have statutes or ordinances (that will stand up to court scrutiny) requiring journalists to have or show identification? Probably not. Second, have you been trained to recognize press credentials like driver’s licenses or state ID cards?
Stay informed and start encounters the right way
DO try to start off on the right foot. Introduce yourself and greet the person you are contacting: “Hi, I’m (name and rank) with the (your agency). Can I talk to you for a bit?” Even if the person responds with “No” or silence, you’ve established your professionalism, and you’re creating the video that serves your purposes — not the auditor’s. It’s easy to escalate from cordial to commanding, but it’s very difficult to de-escalate in the opposite direction.
DON’T ask where they got their law degree. To be fair, where did you get your law degree, officer? Thanks to the internet, anyone with the time and motivation can quickly educate themselves beyond the basic level of legal instruction we received in the academy and subsequent in-service trainings. No, this doesn’t make them a lawyer. It doesn’t mean they know more than you do. And it doesn’t guarantee they are right and you are wrong. Purposeful people, like First Amendment auditors, often do their homework. They might know what they are talking about. Don’t underestimate them, and don’t rush to take enforcement action before you know what you’re actually dealing with.
First Amendment audits are not going away. If anything, the combination of legal recognition and financial incentive suggests they will continue to grow. Officers who handle these encounters well are not guessing — they are relying on professionalism, policy and discipline. They understand that every interaction may be recorded, reviewed and judged long after the encounter ends.
Handled correctly, these encounters can reflect well on both the officer and the agency. Handled poorly, they can create problems that last far beyond the initial contact.
| WATCH: Gordon Graham on how to successfully pass a ‘First Amendment audit’
About the author
Leith Harrell retired from the Orlando Police Department in 2020 as a Master Sergeant with 28 years of service. He currently owns and operates Prokopton Training and Development, LLC, offering risk management training on First Amendment audits. He can be reached at Leith@Prokopton.net.
